RESOLUTION DH (98) 149
CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS
OF 21 FEBRUARY 1996
IN THE CASE OF HUSSAIN AGAINST THE UNITED KINGDOM
(Adopted by the Committee of Ministers on 11 June 1998
at the 633rd meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgment of the European Court of Human Rights in the Hussain case delivered on 21 February 1996 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application (No. 21928/93) against the United Kingdom, lodged with the European Commission of Human Rights on 31 March 1993 under Article 25 of the Convention by Mr Abed Hussain, a Pakistani national, and that the Commission declared admissible the complaint according to which he had been unable to obtain a review by a court of the lawfulness of his continued detention during Her Majesty's pleasure (detention HMP);
Recalling that the case was brought before the Court by the Commission on 8 December 1994 and by the Government of the United Kingdom on 23 December 1994;
Whereas in its judgment of 21 February 1996 the Court, unanimously,:
_ held that there had been a violation of Article 5, paragraph 4, of the Convention in that the applicant, after the expiry of his punitive period, was unable to bring the case of his continued detention before a court;
_ held that it was not necessary to examine the complaint under Article 14 of the Convention;
_ held that the present judgment constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained;
_ held that the respondent State was to pay the applicant, within three months, in respect of legal costs and expenses, 19 000 pounds sterling, less 14 475 French francs already paid by way of legal aid, to be converted into pounds sterling at the rate of exchange applicable on the date of delivery of the present judgment, and that simple interest at an annual rate of 8% should be payable from the expiry of the above-mentioned three months until settlement;
_ dismissed the remainder of the claim for just satisfaction;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;
Having invited the Government of the respondent State to inform it of the measures which had been taken in consequence of the judgment of 21 February 1996, having regard to the United Kingdom's obligation under Article 53 of the Convention to abide by it;
Whereas, during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;
Having satisfied itself that on 25 March 1996, within the time-limit set, the Government of the respondent State paid the applicant the sum provided for in the judgment of 21 February 1996,
Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exercised its functions under Article 54 of the Convention in this case.
Appendix to Resolution DH (98) 149
Information provided by the Government of the United Kingdom
during the examination of the Hussain case
by the Committee of Ministers
The Government of the United Kingdom informed the Committee of Ministers that the Crime (Sentences) Act 1997 (Commencement No. 2 and Transitional Provisions) Order 1997, brought into force, inter alia, sections 28 to 34 of the Crime (Sentences) Act 1997 ("the 1997 Act") on 1 October 1997.
Sections 28 to 34 of the 1997 Act essentially re-enacted sections 34 to 39 of the Criminal Justice Act 1991 so far as they relate to life prisoners. Under the new provisions, detainees during Her Majesty's pleasure are treated differently:
Chapter II, Release on Licence:
Section 28. 1 "A life prisoner is one to whom this section applies if ... (b) he was under 18 at the time when he committed the offence for which his sentence was imposed."
Once their tariff has expired, they are treated in the same way as discretionary life prisoners:
Section 28.5: "As soon as, in the case of a life prisoner to whom this section applies...
he has served the part of his sentence specified in the order or direction ("the relevant part"); and
(b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence."
Section 28.6: "The parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless...
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
Section 28.7: "A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time...
after he has served the relevant part of his sentence; and
(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and
(c) where he is also serving a sentence of imprisonment or detention for a term, after the time when, but for his life sentence, he would be entitled to be released;
and in this subsection "previous reference" means a reference under subsection (6) above or section 32(4)."
Section 28.8: "In determining for the purpose of subsection (5) or (7) above whether a life prisoner to whom this section applies has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952."
Furthermore, according to Section 32.5 (a), the Parole Board can also direct the release of a recalled HMP licensee.
The Government of the United Kingdom also informed the Committee of Ministers that where the Secretary of State refers the case of an HMP detainee to the Parole Board, there is an oral hearing with the same guarantees as are available under Part II of the 1991 Act to discretionary lifers: this flows from the interim administrative arguments announced on 23 July by the Home Secretary. Such prisoners will also be entitled to legal advice and assistance by way of representation.
The Government of the United Kingdom is of the opinion that the measures adopted will prevent new violations similar to the one found in this case and that therefore, the United Kingdom has complied with its obligations under Article 53 of the Convention.
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